Citation Nr: 21005987 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-30 059 DATE: February 3, 2021 REMANDED Entitlement to service connection for multiple sclerosis (MS), to include as due to ionizing radiation exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to August 1985. Entitlement to service connection for MS, to include as due to ionizing radiation exposure is remanded. The claim must be remanded again because the previous remand directives have not been complied with. Stegall v. West, 11 Vet. App. 268 (1998). The April 2020 remand directed the Agency of Original Jurisdiction (AOJ) to contact the US Army Dosimetry Center to obtain a Record of Occupational Exposure to Radiation for the Veteran and then to forward that response to the Under Secretary for Health for preparation of a dose estimate. Although, the AOJ submitted that request in June 2020, the July 2020 response from the US Army Dosimetry Center that the AOJ referenced that was attached in the letters to the Under Secretary of Health, does not contain any information pertaining to whether the Veteran has a Record of Occupational Exposure to Radiation. (The referenced July 2020 response is a copy of the original request with copies of the Veteran’s 2011 VA treatment records showing his diagnosis of MS). The Veteran’s military personnel file contains a document stating that he functioned in a nuclear duty position. Additionally, the October 2011 VA examination medical opinion rationale is inadequate. Furthermore, after four requests to VA’s Under Secretary of Health for radiation exposure dose estimates, no response was received, to include any acknowledgement of receipt of the requests. The requested development has not been completed and there is no indication that such development cannot be completed. On remand, the AOJ must obtain (if necessary), the Veteran’s Record of Occupational Exposure to Radiation or a response that no record exists and associate that response with the Veteran’s claims file. Then the AOJ must forward that specific response to the Under Secretary of Health for a dosing estimate. Once that response is received a new VA medical opinion must be obtained to determine whether the Veteran’s claimed exposure to ionizing radiation during active service caused or aggravated his MS. The matters are REMANDED for the following action: 1. Associate the Veteran’s Record of Occupational Exposure to Radiation with the claims file, if available. 2. If, the Record of Occupational Exposure to Radiation is not available, contact the CDRR Team Leader at the US Army Dosimetry Center to obtain Record of Occupational Exposure to Radiation and associate this record or a negative response to the claims file. (Refer to the September 18, 2018, email if necessary). NOTE: The Veteran has documentation in his military personnel record stating that he functioned in a nuclear duty position during active duty. 3. After a response has been received from the US Army Dosimetry Center, forward all records concerning the Veteran’s radiation exposure, including any relevant service records, statements or testimony regarding exposure, and any other information obtained, to the Under Secretary for Health for preparation of a radiation dose estimate, to the extent feasible based on the Veteran’s active duty service. If a specific estimate cannot be made, a range of possible doses should be provided. If more information from the Veteran is required regarding specifics of the Veteran’s alleged exposure, he should be contacted and asked to provide the information. The AOJ must take all action to ensure that a response is received by the Under Secretary of Health. 4. If the above requested development results in a positive dose estimate, obtain a new VA medical opinion from an appropriate VA examiner to determine whether it is more likely than not (greater than 50 percent probability) that the Veteran’s exposure to ionizing radiation caused or aggravated his diagnosed MS disability. All records, including the positive dose estimate must be forwarded to the examiner. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 5. Then, if the above development results in a positive dose estimate and a positive medical opinion, refer the claim to the Under Secretary for Benefits for consideration under 38C.F.R. §3.311. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.